CHAPTER - III

MIZO CUSTOMARY LAWS AND THE DISCOURSE OF WOMEN’S RIGHTS

In this chapter, I will discuss the history of the written form of Mizo Customary
Laws, and how it went through different stages until the formation of The Committee on
Mizo Customary Laws (CMCL) in 1980. The chapter also discusses the demand of
reform of Mizo customary laws by Mizo Hmeichhe Insuihkhawm Pawl (M.H.I.P) (United
Organisation of Mizo Women), largest women’s organisation in Mizoram. The response
to women’s demands, issues and debates within CMCL will be examined. The question
of reformation and codification of tribal customary laws will be discussed.

The role of the state and the church in upholding the customary laws will be
examined. The study also looks at how women seek protection from constitutional laws,
and the idea that the state offers an arena for emancipation of women will be addressed.
The chapter will talk about the question of minority women’s rights within the
community, the issue of custom and tradition, identity and cultural practices. The
question of how women’s rights are seen as opposed to minority rights and how certain
customs and practices discriminate women will be examined. Impact of cultural
relativism and the implications of human rights will be discussed.

Mizo Customary Laws

As seen in Chapter-II, the Mizo customary law is based on patriarchal ideology
which discriminates women. According to Mizo Customary laws, women do not have
inheritance rights, and they also cannot claim maintenance after divorce. Pautu (2006:98)
states, ‘Women in marriage are continued to be seen as economic liability to the other
family, in divorce, burden to their family and in inheritance nondescript others’. The
deliberation of Mizo women’s subjugated roles and denial of rights is considered
“natural”, and the idea is that it must stay that way. For instance, a widow can inherit her
dead husband’s property only by virtue of her children and for promised fidelity to the

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dead husband. There is no security for a widow within the bounds of the customary laws
unless a will is written.

Mizoram is the first state to have written customary laws among the states of
North East India. The first written form of Mizo Customary law was compiled by N.E
Parry, ‘A monograph on Lushai custom and ceremonies’ was published in the year 1927
by FIRMA KLM Calcutta.

Lushai Autonomous District Council (1954 - 1972)

When Lushai Hills was accorded District Council status, they had to draft new
rules and regulations, and a customary law was one of them. The District Council
immediately took up the task of reforming the Mizo Dan or Mizo Customary Law. In
1954, Sub-Committee on Mizo Customary Board was formed which was headed by
Hrangaia, MDC i/c Village Council. In the 7th sitting of District Council Session 15-5-
1954, Hrangaia reported to the then Chairman of the District Council Dr.Rosiama, that
the Sub-Committee had already gone through a copy of Parry’s monograph, and it was
decided that each member should give their thought and ideas and later to be submitted to
Sainghinga, who would make the final draft. On 29th September 1954, the issue of
whether to make the Mizo Customary Law as a statute law or to remain as monograph
was discussed. Majority felt that it would not be wise to keep the customary law as
statute law. In this session, the power and authority invested on Village Council Court
was discussed and debated. It was decided that petty cases like theft should be presented
before Village Council Court, and only serious cases should be brought to Sub-ordinate
Court. During debates, Hrangaia states that ‘Even during British rule, only serious cases
were presented before the Superintendent, all the petty cases were tried by the chiefs, and
the system worked well’.

The question of who are the Mizos was raised because the Lushai customs and
ceremonies are in fact the composition of the Lusei Clan. Since it was adopted as the
Mizo Dan, there was protest from non-Lusei groups. What was then decided was that the
Mizo Dan would not be applicable to tribes such as: - Mara and Lai who occupy the

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southern part of Mizoram, and who have their own Autonomous District Council. In the
year 1957, the first customary law compiled by the Mizo District Council was published.
But there were no changes relating to marriage, divorce and inheritance.

One of the most notable changes brought by Autonomous District Council was,
Mizo District (Inheritance of Property) Act, 1956. Apart from this, there were no
changes. In fact, the question of women’s rights was not even brought up at all.
According to this Act, women can get property if they are included in the will. But, it has
been contested that a will by itself is not a ‘right’. Moreover, in many cases a will can be
contested by the husband’s family. Pi Sangkhumi, ex-president MHIP and women’s
rights campaigner in Mizoram, said ‘A will is unreliable, and in many cases, a widow
would be accused of forging the will or ruled over on the basis of lack of witnesses. At the
end it is the Mizo customary laws that actually rules’. Even if women (married or single)
holds personal valuable assets/ properties in their name, since the Mizo Customary Laws
does not accommodate how a woman property should be distributed, these have to be
deliberated in the civil courts.

The period from 1972 to 1986 can be termed as one of the most important periods
in Mizoram, due to the intensification of MNF (Mizo National Front) movement. Since
1966, MNF movement was fighting for independence of Mizoram from Indian Union. It
was in 1972 that Mizoram was accorded Union Territory. Under Union Territory,
changes in regard to customary laws were primarily absent. However, one notable point
is that in 1980, the Committee on Mizo Customary Laws board was appointed to continue
from where it was left and to reform, if necessary. After Mizoram gained full-fledged
statehood in 1987, most of the laws which were enacted during the Autonomous District
Council were adopted without modification, and even to this day, it remains almost the
same (Sailo 2006).

Formation of Mizo Customary Law Board Committee

In 1980, The Committee on Mizo Customary Laws (CMCL) was formed, and in
the year 1982, the Mizo Customary Laws Compiling Committee was formed. Even

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though CMCL formed in the 1980’s, the actual work started only after Mizoram gained
statehood. The difference between the two is that, after discussion at Customary board
meetings, the “Compiling Committee” usually makes final conclusion or decisions. Five
members were appointed: Robert Lalchhuana, H.T Thanhranga, Pi Rozami, C.Sangzuala
and Rev Z.T Sangkhuma. Right from the beginning, the Mizoram state government took
active role. The members appointed for the customary law board committee were headed
by the then Minister of State, Law and Judicial Department, Government of Mizoram.

The committee on Mizo Customary law took 20 years to complete the task and to
come up with the latest version of Mizo Hnamdan or Mizo Customary Laws in 2006. The
explanation for the delay, according to the members that I interviewed, was mainly
because whenever the government changes, the new party which formed the government
always changes the members, except for the “Compiling Committee” members. From
People’s Party (P.C) till Mizo National Front (MNF) regime, too many members were
appointed that even they themselves cannot remember each other. In the appointment
letter, the duration or term or condition and period is not mentioned. There are
representatives from the church, NGO’s, and also women’s association. Whenever a new
party comes to power they would appoint new members and the old members’ term is
considered automatically terminated. Within those 20 long years members of the
committee has been changed as many as six times. Apart from the members of the
customary law committee, opinions of NGO’S such as Young Mizo Association (YMA);
Mizo Hmeichhe Insuihkhawm Pawl (MHIP) (United Organization of Mizo Women);
Mizoram Upa Pawl (MUP) (Mizoram Elder’s Organisation) were also sought. The
members of Committee on Mizo Customary Laws comprises of Mizo Elders,
intellectuals, and Pastors. Majority of the members appointed were well known
personalities in Mizoram.

In 2006, the first edition of Mizo Hnam Dan or Mizo Customary Laws was
published by Law and Judicial Department, Government of Mizoram (See Appendix III).
Most of the laws which were enacted during the Autonomous District Council were
adapted without modification and even to this day it remains almost the same (Sailo

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2006). The MHIP, founded on 6th July, 1974, the largest women’s body expressed deep
resentment over the “male friendly” Mizo customary laws. During the process of
“codification” of the customary laws, various demands have been made with regards to
women’s rights and status, MHIP lobby for the reform of Mizo customary laws relating
to divorce, inheritance and sawn-man. ‘Our efforts to change the Mizo customary laws to
make it more favourable for women went in vain'’ says Sangkhumi.

Issues and Debates within Mizo Customary Law Board Committee

The main intention for forming the customary board committee was to
revise/reform the Mizo customary laws attuned with the present society. The interesting
thing is that, the aims and objectives of the Mizo customary committee are expressed
differently by the committee members. Some members maintain that they are to make
changes and some insist they are not. Members like Sangzuala said they are to “re-draft”
the Mizo law while Chawngtinthanga, ex-Secretary of CMCL and Rev Z.T Sangkhuma,
member of the ‘Compiling Committee’ said they are to “compile” the Mizo law. There
seems to be a debate among the members whether the committee was responsible for
making changes and reform the laws. The term “reform” is also consciously avoided by
the committee members for some reasons especially with regard to women’s rights. The
two main arguments at that time were whether customary laws can be changed. Before
the publication of the first edition in 2006, Mizo Customary Law was first notified in
Mizoram Gazette in 2005 (Notification No. H.12018/119/03-LJD/62, the 4th April, 2005),
at the time of notification, Lalrinchhana writes,

It remained two schools of thought, one school of thought opined that Mizo
Customary Law can be changed, amended from time to time along with the fast
changing socio-economy. Another school contended that customary law can not be
notified, altered and changed as it is solely based on customs. Thus, Mizo Customary
Laws 2005, compiled by the committee on Mizo customary laws became like a white
elephant, costly due useless or purposeless in law courts (2009:125).

MHIP Demands
Mizo Hmeichhe Insuihkhawm Pawl) (MHIP), lobbied for the reform of Mizo
customary laws relating to divorce and property rights. MHIP raised three important

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issues during the compilation or re-draft of Mizo customary laws, such as: - 1)
inheritance rights for widow property rights 2) according to Mizo Customary Law, when
a man lost his wife (if the wife died) he can re-marry without any circumstances or
problems and even if he had sexual intercourse with women it is considered alright. But
for women this is not possible, when her husband died the widow may have no sexual
intercourse with anyone at least for three months and even then not until she had
performed thlahual. Until this is done she should remain in her husband’s home; after she
follows all these processes than only she can re-marry. The respondents’ women feel that
this is not fair when men can remarry easily the same is not extended to women. 3)
Increase of Sawnman - illegitimate child’s price given to women. (See Appendix II).

According to the Mizo Customary Laws, an illegitimate child is never a man’s

problem; the custom is that if a woman is pregnant with illegitimate child Sawn, she is
entitled to receive Rs 40/- which is called ‘Sawnman’ from the Sawn’s father. If the
Sawn’s father refused to pay the price, he cannot claim the father’s position. But, there
are no laws of punishment if he refuses to pay. If he pays the price, the father gets the
custody of the child, after the child reaches 3 or 4 years old. If a woman has any sexual
intercourse with another man while pregnant it would be considered infidelity and would
have to fine Rs 40/- to the Sawn’s father. On the other hand, the customary laws do not
extend any punishment to the man who had sexual intercourse with a pregnant woman. A
woman with a Sawn is considered an outcast by the society; suffering severe image
damage which destroys her future prospects. Men are never blamed nor made to suffer
and they hardly take any responsibility (Pautu 2006).

The members of the Committee on Mizo Customary Laws (majority of them male)
argue that even though the intention for forming the customary board committee is to
revise the Mizo customary laws attuned with the present society, the committee’s aim is
not to “reform”, instead the aim is to “revise” some of the old laws. For instance, to
remove laws which are no longer “relevant” or no longer used in contemporary Mizo
society. Majority of the members consider MHIP demands as “illogical” and

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“unreasonable”. A female respondent and also member of Mizo customary law points
out,
Men members were really not happy about our demands especially increase of
sawnman, one particular member (name withheld) accused us that if we increase
sawnman to say Rs 10000/- or as per with the present economic value, many women
would use it for business.

However, all the male members I interviewed claim that they understand women’s
“plight” and “condition”. They also agreed that customary laws did not put women at the
same level with men. However, they rejected women’s demands based on the notion that
it is “outside the preview of the customary laws” and which is held as something
impossible. One of my respondents points out, ‘We cannot reform customary laws; it is our
custom, if we reform then it will no longer be our custom. The chairman of the customary law
board committee clearly warned us that any attempts to reform should be confined within the
existing laws’.

In response to MHIP demands, a male member of the customary committee also said,

I feel they asked for something impossible, we have to explain to them that
customary laws cannot be changed. If it is reformed or changed then it would no
longer be custom. We debated this issue for so long. In between, new members were
inducted in the committee and the newly appointed members from the women’s group
would demand the same thing. We had to explain again and again. (Note: he uses
‘we’ and ‘them’ to refer to MHIP)

However, this standpoint extends only to women’s rights. What actually happens is that,
there have been reforms in the customary laws as well. One example is Tlangchil
(Tlangchil is one of the social practices and which is also one of the customary laws of
the Mizo. This law implies that if a person misbehaves or does something wrong the
people/fellow villager can take action, sometime they beat up people and even ransack
their home) (See Appendix II)1. At present, Mizo people have started to protest the
brutality of the nature. The Customary Committee states that there are some laws which

1
There are some members who argued that Tlangchil is not the common practice of Mizo, it
is only practiced in some few villages. However, they did not deny that, it is considered one
of the Mizo customs.

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are considered no longer relevant for the present society; therefore, it has been omitted.
They maintained that the demands made by women are radically different from existing
Mizo customs, and they cannot make that kind of drastic change. To quote one of my
respondents, he states,

Tlanchil is no longer used now that we have agency such as police, Village Council
Court, District Council Court etc. We don’t need Tlangchil any more - where
members of the community can take actions against a person who violates the rules
and regulations of the community.

There are some reforms that have happened within customary laws but only those
with the interest of the larger section of the society. Tlangchil is banned because majority
of the Mizo felt it is good for the Mizo society. As for the women’s demands even
intellectuals, elders and majority feel that it is not possible, because it is too diverting
from the existing laws. As one of the members stated, ‘We intended to make changes only
if it’s in accordance with the Mizo customs. In fact, Mizo elders and especially the
intellectuals present at the committee cannot digest the demands made by women’. Not
only this, women’s representatives in the customary law committee faced various kinds
of discriminations such as being denied a chance to speak at all. There was even a time
when the chairman of the committee asked all the women representatives to leave the
room. One of my female respondents shared her experience as committee member, she
expressed,

During the committee, we were not taken seriously. Whenever we tried to talk
they would not listen. So we decided to ask some men who are sympathetic
towards our cause. So when those men spoke on behalf of us the other members
would listen, but when we women speak they don’t want to listen.

Based on the study, it seems that when it comes to women’s rights, members of
the CMCL (mostly male) consciously avoided the word “reform”. The question of
customary law as representing Mizo identity and more significantly symbolizing Mizo
cultural values is deeply rooted among the people. Opinion varies, but, one thing I
observed among my respondents and people I met during my fieldwork is that, majority
feels that Mizo customary laws should not be reformed nor can be changed. However, out

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of these majority, few people acknowledged the limitations of the usages of Mizo
customary laws, for example, in terms of punishment or penalty fine, they said the
amount is too less. However, with regards to women, most common responses are: -

Mizo women’s position within customary laws may not be satisfactory, but since
this is our custom, there is nothing we can do about’. There is also another
interesting point made mostly by the male members of the customary committee
that is, ‘If MHIP feels that women need certain rights, they should seek state
provision’.

In a way, the state is held responsible for women’s rights while justifying the
discriminating nature of the customary law.

Though reform and modifications of the customary law was the aim and objective
of the formation of the committee, changes with regards to women’s rights were
overlooked. They rejected women’s demand based on the notion that it is outside the
preview of the customary laws and regarded as something impossible. Based on the
study, we may say that the members of the committee reflect the patriarchal social order
of the Mizo society. In a sense, customary law springs from the people it purports to
govern. In essence, it is found in the consensus of the socio-political group (Bennett and
Vermeulen 1980: 206-219).

Issues of Codification and Customary Law Reform

The major main question is the issue of codification which still remains in
ambiguity. Majority of the members of The Committee on Mizo Customary Laws
(CMCL) have stated that it is “codified” and accepted by the Mizoram State Legislative
Assembly. Meanwhile, senior lawyers like Thanga (name changed) vehemently opposed
the claim by saying that ‘customary law cannot be codified’. He along with many others
argue that the CMCL merely “compiled” the Mizo laws, and being a member of the
committee does not give them the authority to make laws or turn customary law into a
statute law.

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 In the issue of codification of customary law, Bennet & Vermeulen, in their study
of The Customary Law in African Societies (1980) proposed two interesting theories: The
first approach, according to them is, codification usually takes place at the aftermath of
revolution in order to establish a new legal system, and it arises out of the necessity to
“bringing up the law up to date and removing uncertainties and contradictions” or in
other words “establish a new legal order to assist in modernising the nation”. The best
example given is Ethiopian codification project which presents the “radical reform” of
the whole legal system including the almost total abolition of customary law. The second
approach advocates a “code in close conformity with customary law”. The Second theory
suggests that customary law is ‘The best system adapted to the needs of the people and,
thus, in accordance with their traditions and social values’. They argued that the
Malagassy code provides a good example of this approach. This approach states that to
ensure the acceptance of the customary law by the people whom it was intended to rule,
the code should take customary law as its basis. In this context, ‘Modification of the
customary law would be required where the question arose out of reconciling conflicting
rules of customary law, of attempting to amalgamate customary and civil law or of
abolishing what might be felt to be undesirable or outdated rules’ (Bennet & Vermeulen
1980:207-209).

The second approach seems applicable in the context of Mizoram. The Mizoram
Government formed the customary law so that it can be updated to the present society.
Certain law which seems “redundant” in the “modern” Mizo society was abolished.
Robert Lalchhuana, a member of the CMCL points out ‘we were to bring the old
customary laws in attune with the present society’. However, the status of Mizo
customary law as codified law remains uncertain. The CMCL members also voice
differently in this regard. Whether it is codified or not codified, Mizo Customary Law is
used in all family matters, especially with regards to marriage, divorce and inheritance. If
a case falls under the purview of the customary law, judges in modern courts consult the
written customary book before making judgments. But, this is not to say that just because
the customary law is in written form it has the codification status, Bennet & Vermeulen
writes,

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 Codification in the case of customary law implies far more than the mere provision of
a written description of existing unwritten rules. Customary laws which are reduced
to writing and then applied in court necessarily undergo change; this change may
result in disregard for the codified version (1980: 211).

The CMCL’s main reason for compiling the Mizo Customary law was very similar to
Mizo District Council period, which means it is mostly based on Parry’s Monograph on
Mizo Custom. My respondent Rev .Z.T Sangkhuma says,

It is inevitable for us to use Parry’s monograph on Mizo customary laws. But, we

also did research of our own in some cases; we talked to elders and people who are
expert in customary laws. (i.e mipa in ‘luhkhung’ or ‘fan’ issue). Since there are
many practices among the sub-tribes of Mizo it is more difficult for us, and the north
Mizoram and South practices are also not the same. In such cases we try our best to
maintain the balance, and tried our best to find out more from different sources.

Majority of the committee members feel that the Mizo Customary law written by Parry is
“authentic” and presents the “true” social order and customs of the Mizo society.
Prominent Mizo historian like Thangliana (name changed) who is also a member of
CMCL, has stated that it is the “correct” Mizo custom. This is contrary to what had
happened elsewhere in other colonized country. Beckmann (2001: 31) points out ‘What is
often thought to be authentic customary law, in the sense of untouched by the western
influence, in fact has been fundamentally influenced by colonial rule’. But, the question
of how much colonial administrators have “filtered” the Mizo customary law seems un-
important, as majority of the Mizo readily accept what is in the written form.

Interaction of State and Religious Authorities

Women seek the state intervention for rights and provisions, not only in Mizoram,
even in the mainstream India, women’s movement have always considered legal reform
as a tool to empower women (Nair 1996). According to Rajni Kothari (1994), the state in
modern times has been a source of both law and legitimacy, of authority and monopoly
over coercive power, a source also of security for the people, of systems of justice,
equality and accountability, and through them all, of conditions for freedom and
creativity, the arts and the pursuit of excellence.

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 Since the state promised equal rights to all citizens, naturally, it is considered that
the state should ensure fundamental rights to every individual. This leads us to believe
that state’s intervention is crucial for social reform especially concerning women’s rights.
But feminist studies have pointed out how the state is responsible for the continuation of
patriarchal system and in reproducing patriarchal social relations. Women, as a
homogenous group, are often oppressed by a centralized state (Haney 2000:641).

In Mizoram, MHIP recognizes Mizo women’s subjugation and denial of their

rights by customary laws, therefore, they ask for state intervention for protection of
women. On 27th June, 1997, MHIP submitted an application to the Secretary to the
Government of Mizoram, Law and Judicial Department, demanding that ‘The Christian
Marriage Bill, 1994’, ‘The Christian Adoption and Maintenance Bill, 1994’ and ‘The
Indian Succession (Amendment) Bill, 1994’ should be applied in Mizoram as well2. The
MHIP feels that since Mizo women are subjugated and being denied their rights by
customary laws, if these proposed laws are adopted women would have certain
provisions such as maintenance rights. However, the proposal was opposed by the
Church leaders of different denominations – Zoram Kohhran Hruaitu Committee
(ZKHC). They feel that though these laws are meant for the Christian population in India,
it is unsuitable for Mizoram Christians. They rejected saying, ‘If these laws are adopted,
it would create problems to our existing system, since there are different denominations
in Mizoram, and each have their own systems and practices’. And the Government of
Mizoram took a stand saying that it cannot go against the church’s will.

This refusal from the church is not surprising at all. The functioning of legal and
religious institutions has often been criticized by feminists. Religious prescriptions on
gender roles are often criticized as being too patriarchal. Rosemary Reuther suggests that
religion is the most important and an enforcer of the image of the traditional role of
women in culture and society (Reuther 1974). The Church, being one of the most

2
Application submitted to Shri Chakraborty, Secretary to the Government of Mizoram,
dated 26.6.1997, Aizawl.

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important religious organizations, played an important role in maintaining community
and shaping and moulding the members towards “Christian ideology” and maintaining
Mizo “customs” and “traditions”. The patriarchal structure of the Mizo church is such
that till today, the Presbyterian Church of Mizoram still denies ordination of women,
even though issues were raised against this. The notion is that women should not ask for
ordination, but prove their commitment through their action while men are given
ordination (Lyn et al 2005).

The church interference in the state government is extremely observable.

Recently, the church was against the idea of official marriage registration order by the
Indian Supreme court for ‘fear of being stripped down of their power which they have
enjoyed so far’ (Lalruatfela nu 2006). The church seems to possess a kind of non-
interference and indifference when it comes to Mizo customary laws especially issues
concerning women’s rights.

Since Mizo women are legally deprived and, the governing law Mizo customary
laws are “consciously repressive”, MHIP seeks out state intervention with the hope that
the state would provide provisions for women. In 2006, MHIP made another demand to
Mizoram state government. Their demands were: - Mizoram state government should
adopt the Act passed by India parliament which concerns women such as; - Indian
Christian Marriage Act, 1872 and Protection of Women from Domestic Violence Act,
2005. If this is not possible, the state government should enact laws such as: - The Mizo
Women’s Inheritance Act/The Succession Act and The Mizo Divorce Act/The Mizo
Women’s Right to Property Act. However, all the demands remain unsuccessful.

According to MHIP leaders, they demanded Christian Marriage Act, 1872

because this would at least ensure certain provisions for women, however limited it may
be. The church’s refusal to this Act is also seen as “fear” of being stripped of their
authority. One respondent says, ‘According to the Indian Christian Marriage Act, 1872,
the government shall appoint marriage officer, even ordained minister such as pastor
needed approval from the government’. At present, in Mizoram the church has absolute

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authority. The church does not require the government’s approval for marriage officer.
Usually ordained pastors and church elders (in exceptional cases) act as the marriage
officer. According to one of my respondents,

The main reason for not adopting Indian Christian Marriage Act in Mizoram is
because of the church leaders, especially the Presbyterian Church. I feel that if the
Indian Marriage Act is adopted, the church’s power over the whole marriage might
remotely change and it is possible that the church may not like that change.

Another respondent also pointed out, ‘It is possible that if the Indian Marriage Act is
adopted, the church’s power and authority over marriage could be reduced’.

However, the church leaders denied this accusation saying that the reason is rather
to do with Mizo “customs” and “traditions”. If we are to adopt Indian Christian Marriage
Act, Mizo customs will “fade” away. Besides, they see the present system as best suited
for the Mizo society. In spite of MHIP demands, no notable changes have happened so
far. The only positive thing is that in October, 2008, Mizo Divorce Ordinance Act, 2008
was passed by the Mizoram government.

The much anticipated Mizo Divorce Bill (Ordinance), 2008 did not protect women or
give rights to shelter or separate residence if the husband is cruel. Her only relief is a
petition for divorce (this will be discussed in Chapter-V). Though the Mizo Divorce
Ordinance Act, 2008 opened some scope for Mizo women, as it is not yet passed to
become an Act, it could not function as of now. In the context of Mizoram, women’s
right is seen as less important than any other social issues. Women’s rights were ignored
while compiling, modifying and codifying the Mizo Customary Laws. When it comes to
‘rights’ women seek protection from the constitutional laws, hoping that they would
achieve what is rightfully theirs, Upendra Baxi states ‘A more promising arena for
emancipation of women than is offered in the domain of the people’s laws’ (Baxi
1986:54). But the idea that the state offers an arena for emancipation of women can be
contested as the state itself is guided by patriarchal ideology.

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Issues of “Equality” and MHIP
MHIP was formed on 6th July, 1974 at State Social Advisory Board office. The
motive behind the formation of MHIP was that, when Mizoram was accorded Union
Territory status, it was necessary to form a large organization in order to carry out various
development schemes. MHIP was formed with the intention to include all women in
Mizoram, when it was first formed, it was named “Mizoram Hmeichhe Insuihkhawm
Pawl” (United Organisation of Mizoram Women), which was later changed into “Mizo
Hmeichhe Insuihkhawm Pawl” (United Organisation of Mizo Women) on 20th Aug,
1998. After the new name, there was a feeling that women who are not of Mizo/Lusei
tribe are not within MHIP. However, MHIP is the largest women’s organization in
Mizoram and all other women’s organization such as Mizo Hmeichhe Tangrual Pawl
(MHTP) (Mizo Women’s Organisation), Mara Chano Py (M.CH.P) (Mara Women’s
Organisation) at the southern part of Mizoram are all affiliated to MHIP.

According to the leaders of MHIP, some of the main aims and objectives are: -
empowerment and women’s welfare and to protect women and children as they are
weaker sections of the society. In the initial stage, MHIP slowly built up their focus on
women’s welfare. In 1987 it was declared “Hmeichhe Kum” (Women’s Year). However,
during this period, MHIP did not have much voice. Since the late 1990’s MHIP decided
to focus more on women’s empowerment. For the first time in 1997, “Women’s
Empowerment Year” was declared amidst the criticism from society especially male
members. Sangkhumi said,

I suggested that we should declare the year 1997 as “year of women’s

empowerment”. The then president Pi Lalnipuii supported me, however, other
executive committee members were very nervous and scared, and they said ‘we
should not add the word empowerment, lets just say women’s year’. They fear that if
we include the word empowerment we will be facing too much criticism especially
from the men. However, it was decided that by any means we should announce as
‘year of women’s empowerment’. We organized conference based on the
empowerment theme and other related issues. When it was time to speak up, nobody
wanted to be the first speaker, MHIP members were all scared to be hated by society
and men, they fear that talking about women’s empowerment would provoke such
feelings. I stood up and deliver the first ever speech on Mizo Women’s Empowerment.

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MHIP leaders faced various criticisms from the beginning. Lalnipuii points out, ‘there
are many male members who hated her’ because of women’s empowerment. Because of
the strong patriarchal mindset of the Mizo society, it was very difficult for MHIP to stay
forceful and strong. Lalsangpuii said majority of women do not support MHIP, she states,
‘The sad thing about Mizo women is that, majority of them are not aware that they are
being subjugated and that the customary law discriminates women’.

As mentioned before, MHIP is reluctant to talk about “equality” of men and

women and instead of “equality” MHIP focus more on empowerment of women through
“men’s sympathy”. My respondent Rozami states,

Mizo men don’t like it if we say women are equal to men. They accuse us of
trying to overtake men’s authority. In fact, we MHIP does not talk about taking
over men’s authority. We don’t want to challenge male’s authority but we want
empowerment since we are less privileged than men. As we see in the Bible ‘a
woman’s head is her husband’ we do not challenge male’s authority. But we do
need empowerment as our position is much lower; we feel that we should be
partners with men.

This reflects how women take an active part in transmitting patriarchal ideology.
Mizo women can be categorized into three groups, first, women who would no longer
tolerate and sit quietly, these women feel that they are the victims of patriarchal system
and they should do something about it, but they are very few (e.g. Mizo theologian
women). Second, there are others who feel that their position is lower than men but it’s
just how it should be, it’s natural (e.g. majority). And third, there are women who feel
that their position is not good and they should raise certain questions, but they do not
want to question patriarchal system. According to these women, women empowerment
should take place only at ‘certain level’ – they state that ‘they don’t question male’s
authority’; most of the MHIP leaders I met fall under this category.

MHIP leaders though demanding women’s empowerment and even reform of

Mizo customary law, also endorse patriarchal ideology. For instance, among the MHIP
leaders who demand Mizo women’s empowerment, they insist that they only demand

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empowerment for women who ‘deserved’, who have been “victimized”. In terms of
widow property rights, prominent MHIP leaders told me ‘We only ask to reform
customary law for widows who deserve to inherit her husband’s property, a true Mizo
woman who is faithful and fulfilled all her duties to her husband’. The question of
daughter’s inheritance rights was not brought up at all. Also, all members of MHIP
representatives in the Customary Law Board Committee did not ask for reform of Mizo
customary law. Within the MHIP the members were divided on this issue.

Contentious Traditions
It is a well known fact that women are discriminated in the name of custom and
tradition. In every society, women bear the burden of keeping the tradition alive, and in
most cases, women also take part in transmitting those “traditions” from one generation
to the next generation (Rayaprol 1997). What really is worth considering is; is tradition
really representing the old social order? What is the difference between custom and
tradition? And how are these two related? In the study of Sociology, custom is ‘any
standardized and more or less a generally expected pattern in a group life’. In other
words, custom denotes established patterns of behaviour which includes the routines of
daily life, and to the distinct features which mark off one culture from another (Marshall
1994). Customs are often rigid, tyrannical, burdensome and difficult to escape. They
enforced “traditional values” irrespective of the benefits or advantages derived.
Sometimes they invent ingenuous explanations and justifications for customary practices
(Bennett and Vermeulen 1980; Zechenter 1997).

The Oxford dictionary of Sociology defined tradition as ‘A set of social practices

which seek to celebrate and inculcate certain behavioral norms and values, implying
continuity with a real or imagined past, and usually associated with widely accepted
rituals or other forms of symbolic behaviour’. An example is, the distinct Highland
culture (of kilts, tartan, and bagpipes) of Scotland were a late 18th and early 19th century
creation. The indigenous political and economic traditions of many African societies
were also in fact invented by the colonial authorities in order to make the necessary

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connections between local and imperial political, social and legal systems (Marshall
1994:672).

According to Eric Hobsbawm (1983), there is probably no time and place which
has not seen the “invention of tradition”. He argued that invented traditions occurred
more frequently at times of rapid social transformation when “old” traditions were
disappearing. He is of the opinion that a large number of “new” traditions are invented
over the past two centuries. Traditions which claim to be old can be quite recent in origin,
and sometimes traditions are invented. However, he also states the term tradition need not
be used either as a broad nor imprecise sense. It includes ‘both traditions actually
invented, constructed and formally instituted’. But the important thing is some tradition
which emerged in recent time but however establishing themselves with great rapidity,
e.g the royal Christmas broadcast in Britain, which was first instituted in 1932.
Hobsbawm explained,

Invented tradition is taken to mean a set of practices normally governed by overtly or

tacitly accepted rules and of rituals or symbolic nature, which seek to inculcate
certain values and norms of behaviour by repetition, which automatically implies
continuity with the past. In fact, where possible, they normally attempt to establish
continuity with a suitable historic past (1983:1).

He further said, the peculiarity of the “invented traditions” is that the “continuity
with its largely factitious”. They are responses to ‘Novel situations which take the form
of reference to old situations, or which establish their own past by quasi-obligatory
repetition”. Hobsbawm distinguished between three types of invented traditions which
each have a distinctive function: a) those establishing or symbolizing social cohesion and
collective identities b) those establishing or legitimizing institutions and social
hierarchies, and c) those socializing people into particular social contexts; the first type
has been most commonly referred to and often taken to imply the two other functions as
well (9). He also mentioned the adaptations and new uses of “old tradition” for new
purposes.

Hobsbawm argued, ‘tradition in this sense must be distinguished clearly from

customs; which dominates so called traditional societies’. According to him, the object of

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tradition is “invariance” and they are “repetition”. Whereas customs does not lead up
innovation and change up to a point, though it is obvious of the requirement that is- ‘it
must appear compatible or even identical with precedent imposes substantial limitations
on it’. Hobsbawm further explained ‘by custom from time immemorial’ does not
necessarily express a historical fact. He drew an example of British Labour movement, he
states that the labour movement were aware of the fact that ‘the custom of trade’ of the
shop may represent which was not necessarily tradition, but rather whatever right the
workers have established in practice which could be recent. The important thing is,
however recently, they now ‘attempt to extend or defend by giving it the sanction of
perpetuity’. He writes,

Custom cannot afford to be in invariant, because even in traditional societies life is

not so. Customary law or common law still shows this combination of flexibility in
substance and formal adherence to precedent….custom is what the judges do;
tradition (in this instance invented tradition) is the wig, robe and other formal
paraphernalia and ritualized practices surrounding their substantial action. The
decline of ‘custom’ inevitably changes the ‘tradition’ with which it is habitually
intertwined (1983: 2-3).

Hobsbawm argued that “invented traditions” use references to the past not only for the
cementation of group cohesion but also for the legitimating of action. In this context, he
states that historians in the present should become much more aware of such political
uses of their work in the public sphere (12). This point can easily be extended to include
in modern political contexts such as the negotiations of national and ethnic identities.
What we can emphasize from the above theory is that, since custom and tradition co-exist
side by side, a decline in one level eventually led to a change in another level.

For instance, the Mizo marriage tradition has changed after Christianity in
Mizoram. Marriage was seen as civil-contract which is now coupled with religious duties.
Now, marriage solemnized in the church has become the “invented” Mizo tradition along
with wearing white gowns, the way marriage are solemnized in the church represent not
of the earlier Mizo “tradition” but rather of the “western” tradition. This may be because
of the decline of traditional Mizo customs, which perhaps is not considered applicable in
the ‘modern’ society. This automatically led to the ‘invented’ new tradition, majority of

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the Mizo accept that marriage solemnized in the church is part of the Mizo-Christian
tradition.

This is echoed by a respondent, who said ‘As a Mizo, it is unthinkable to get

married outside the church, we are Mizo and Christian, and this is the Mizo Christian
tradition’. Even if a couple decides to elope, eventually recognition /solemnized from the
church is usually conducted later. Another example could be in the system of bride-price.
According to Mizo customary law, bride-price is given to the bride’s father, brother and
her maternal uncle usually blood relatives. However, at present, bride-price is given to
any relatives whom they favour. These relatives however are not necessarily blood
relatives. One of my respondents, and also a member of the CMCL said,

Today, people don’t follow Mizo customary law at all, some family distribute their
daughter’s brideprice among friends whom they think could contribute for the bride’s
thuam or dowry. Some family give bride-price to people who are rich and powerful.
Though it’s too early to say this is the new tradition, majority of the modern Mizo
seems to follow this pattern and soon this could become a new tradition.

“Authentic” Tradition
Lata Mani in her essay brought the debates on what ‘constitute authentic cultural
tradition’; she presents her argument through the analysis of the debate of sati during the
19th century. She argued that, ‘the conception of tradition Rammohun contests and the
orthodox is colonial discourse’. She writes:

Tradition was re-constructed under colonial rules and, in different ways, women and
Brahmins scripture become interlocking grounds for this rearticulation. Women
become emblematic of tradition, and the reworking of tradition is largely conducted
through debating the rights and status of women in society…these debates are in
some sense not primarily about women but about what constitute authentic tradition
cultural ( 2006:90).

Lata Mani mentioned how the Brahmanic scriptures are seen as the locus of this
“authenticity”. She argues that the privilege given to Brahmanic scriptures and ‘the
equation of tradition’ is an effect of colonial discourse on India. Mani argued colonial

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discourse as a means to legitimate the colonial state. She mentioned that the indigenous
male elite, though subordinate to British colonial officials, actively participated in
representations of sati and in constituting ‘woman as the site for the contestation of
tradition’.

With regards to women’s rights, studies show that traditions are created and new
forms of patriarchy can exist. For instance, Partha Chaterjee in his essay The Nationalist
Resolution of Women’s Question argues that the mid nineteenth century attempts in
Bengal to “modernize” the condition of women was over taken by the new politics of
nationalism which ‘glorified India’s past and tended to defend everything traditional’.
Partha Chatterjee argues that the main resolution was built around material and spiritual.
The material sphere was where the dominance of the western civilization was most
visible such as, Science, technology, rational forms of economic organization, modern
methods of statecraft etc. To overcome this domination, the colonized people must learn
these superior techniques of organizing material life and incorporate them within their
own cultures’. This was one aspect of the nationalist project of rationalizing and
reforming “traditional” but they were burdened with the limitation to which they can
imitate the west, because they were aware that they could not copy everything as that
would erase the difference between the ‘east’ and the ‘west’ (2006: 234). Partha
Chaterjee’s point is, in every case, there was a problem of selecting what to take from the
west and what not to take. So, in the course of that ‘liberation’ certain ideas from the west
were taken in as well as certain areas such as the ‘spiritual’ area was felt necessary to be
guarded from the west.

Partha Chatterjee also points out, in the course of social reformation, adjustments
have to be made with the material level, but, what was equally important was to retain
inner spirit of indigenous social life. The idea was that changes in the external conditions
of life should not let women lose their essentially spiritual (i.e.Feminine, virtues etc).
They must not, in other words, “become essentially westernized”. The result is, as
Chaterjee writes,

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 The new woman defined in this way was subjected to a new patriarchy. In fact,
the social order connecting the home and the world in which nationalism placed
the new woman was contrasted not only with that of modern western society; it
was explicitly distinguish from the patriarchy of indigenous tradition (2006:244).

Many times “tradition” is used as political strategy especially in the context of women’s
rights. For instance, the social reform of 19th century was followed by the “nationalism
era’” where it was felt that everything traditional needed to be protected especially the
“spiritual”. The nationalists now moved away from the social reform and emphasized the
importance and preservation of Indian identity and tradition (Chaterjee 2006). The
“public” / “private” distinction was the basis of the colonial law. As mentioned earlier,
the “private” or “spiritual” was seen as the space for women who would protect the
family from the external forces. Women then became the custodians of the culture of
politics, religious and tribal groups (Jaising 2005; Nair 1996). Since women have been
socialized in such a way that they are led to believe that they are custodians of these very
laws, rituals and practices. Not only that, women in many society perceived that their
dignity is ‘Intricately linked to the identity of the group. Any identity attack is seen as an
assault on their own dignity (Coomaraswamy 2005:28).

This is extendable in almost all societies especially among minority groups in

India. Coomaraswamy (2002:7) also highlights, tradition is full of contradictions and
alternatives. ‘What we choose to highlight from the past often reveals more about our
judgment than about our ancestors’. She argued, for example the BJP’s choice of Sita
over Kali as their role model for women is a modern one, made for what they think the
proper wife should be in a modern nation. ‘There are no essential traditions, only
essential memories that pick and choose from the anthology of the past’.

Customary Laws vs. Indian Constitution

The tension between minority rights and women’s rights have been long debated
and discussed even in mainstream Indian society. This problem lies within the Indian
constitution itself. Though giving “equal” rights to all citizens, the Indian Constitution
also separately recognizes and grants special provisions to religious minority groups and

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tribal communities. This often caused conflict in relation to women’s rights. This position
has been justified by the State on grounds of non-interference with the right to cultural
practices of minority communities and religious communities (discussed in Chapter-I).
This approach is most common especially in the interpretation of personal laws. With
regard to personal laws, the state gives precedence to religious rights over women’s rights
to equality (Jaising 2005:5). The same is extended to tribal customary laws.

In Madhu Kishwar v. State of Bihar3 case, the Chota Nagpur Tenancy Act 1908,
which provides for succession to property in the male line, was challenged on the ground
that this is discriminatory against women and therefore, it violates Articles 14, 15 and 21
of the Constitution. A two member bench hearing this matter was informed that the State
of Bihar had set up a Committee, to consider the feasibility of appropriate amendments to
the legislation and to examine the matter in detail. The outcome of the committee was,

[A] meeting of the Bihar Tribal Consultative Council was held on 31 July 1992,
presided over by the Chief Minister and attended to by M.P.s and M.L.A.s of the
tribal areas, besides various other Ministers and officers of the State, who on
deliberations have expressed the view that they were not in favour of effecting any
change in the provisions of the Act, as the land of the tribals may be alienated, which
will not be in the interest of the tribal community at present4.

In summary, the committee states, after consulting the opinion that the people of the area,
they were not interested in having law changed, and that if the law be changed or so
interpreted, letting estates go into the hands of female heirs, there would be a great
agitation and unrest in the area among the schedule tribe people who have custom –
based living.

The tribal law was justified on the ground that it was necessary to retain the land
in tribal hands in order to preserve the identity of the tribe. They argued that, to allow
tribal women to marry non-tribals and inherit tribal land which could be alienated, would
disintegrate a community’s identity. The Supreme Court, by admitting the petition, read

3
1996 AIR 1864 1996 ( 1 ) Suppl. SCR 442
4
Madhu Kishwar and others v. The State of Bihar and others (AIR 1996 5 SCC 125)

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out the discriminative provisions of the Act and paved a way for tribal women to entitle
their rights to tenancy lands along with men. Jaising states,

In a dissenting judgment, one of the judges ruled that women had full rights of
inheritance, referring to international covenants which supported the right to non-
discrimination. Again the Indian Supreme Court refused to strike down this obviously
discriminatory provision (2005:7).

The clash of minority rights and the equality rights of women is again reflected in the
Shah Bano case. In this case, the husband’s refusal to pay for maintenance was
legitimized by his religion - Muslim personal laws. The Supreme Court held with Shah
Bano and declared that there is no conflict between these laws. Jaising argues, the
Supreme Court’s interpretation of Quran in an ‘elaborate manner’ did not go well with
Muslim religious leaders, because they felt the court had performed a theological
function which was exclusive to them, which is “private”. They held that it was not part
of the function of Supreme Court to interpret and interfere in such matters. Jaising
writes,

There was no attempt by the Supreme Court to deal with the interrelationship
between fundamental rights and personal laws; it did not address the argument that
Muslim personal law violates the guarantee of equality for women. Even in this case
there was no attempt by the Supreme Court to declare the provisions of Muslim as
unjust and discriminatory (2005:7).

These two cases reflect the dilemma within the Indian legal system. On the one hand, the
constitution is responsible to ensure equal rights to all citizens irrespective of gender. On
the other hand, the same constitution plays an important role in the continuation of laws
which discriminates women. By allowing this, the Indian legal system gives priority to
religious and customary laws over women’s rights. Though this is against the principle of
the Indian Constitution, at least in theory, reality plays out differently.

Women’s rights vs. Minority rights

Coomaraswamy (2005:24) pointed out, fighting group prejudice while struggling
for women’s empowerment are often faced with the ‘Modern dilemma between the
Universal Human Rights and the particularity of cultural experience’. For instance,

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Sylvia Tamale also points out how the mainstream feminist present the two concepts of
“culture” and “right” as distinct, invariably opposed and antagonistic. Her articulation
also states how we are made to believe that the concepts “culture” and “rights” are polar
opposites with no possibilities for locating common ground where new synergies can be
developed for social transformation. She argues that this is especially true in the case of
how theorists of African women’s rights, where culture is viewed as being essentially
hostile to women. She states, ‘Narrow interpretations of culture that collapse it with
‘customs’ or ‘tradition’ and assumed these to be natural and unchangeable exacerbate the
problem’ (Tamale 2008: 47-48). Women have to first strip themselves off culture before
enjoying their rights.

Women are continued to be seen as custodians of culture and ethnicity. Why

women’s rights have to be considered contradicting with the minority rights? How can
women fight for rights without being seen as against cultural rights? These are questions
that need to be addressed. In the context of women rights especially of north east India,
where customary laws are the governing laws, women’s rights often clash with cultural
identity. This seems to be unfair, if we put women to choose between her community and
her individual rights, we put her in a very difficult situation. The Shah Bano case reflects
how a woman in spite of all discriminations still feels loyal to her community.

Liberal feminists have attacked customary laws because of their patriarchal

nature. Therefore, they look upon customary laws as “traditional” and compare it to the
modern legislation. Nandita Haksar illustrated that there could be a false dichotomy
between women’s rights versus tribal people rights. She says,

At a superficial level this stand is absolutely correct from the tribal women’s point of
view and this is also true that some of the tribal women facing anti-women customs
which deprive them of their basic rights have also joined in the demand that
customary law must go (2008:279).

This view indicates that the demand of Uniform Civil Code by some women’s groups in
mainstream India might not be applicable to tribal areas. The tribals may not welcome

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that which is “alien” to them. Since the customary law is the tribal jurisprudence for
them. Haksar raised the question as to whether it is fair to brand all the customary laws as
“traditional” and against “modern”. In states like Mizoram and Nagaland customary laws
are used to effectively dissolve many cases etc. Haksar mentioned how human rights
jurisprudence and liberal and radical feminist place a great deal of stress on individual
rights and the primacy of individual rights over all kinds of human rights. She argues that
this may not work out well as already western feminist have found the limitation of this.
She drew her theory from Carol Smith’s (1989) writings which say, though the language
of rights was important in challenging the conservatives order, the rhetoric of rights has
become worn out, and may even be disadvantageous. Haksar comments,

This is especially the case where women are demanding rights which are not
intended (in an abstract sense) to create equal rights with men, but where the
demand is for a “special rights” (e.g women’s rights to choose) for which there
had been no masculine equivalent (2008: 284).

She suggested that instead of debating the dichotomy of individual rights versus
indigenous right, we should think of a third model. She talks of the need to build a
movement on tribal socio-cultural traditions but insists that ‘An alternative to a
movement cannot be a petition….we should resort to the law only when the movement is
strong enough to carry the law reform forward’. In almost all such cases, a legal battle
should only supplement the political battle outside the courts. She also points out the
need to build a movement for creating a new jurisprudence which draws on human rights
law and certain feminist legal critiques (284).

However, in the context of northeast, it is inevitable to escape the debate of

dichotomy of individual (women) versus indigenous rights. Since the identity politics
plays a very important part, preserving tribal traditions are all too important for the
people and women are the site of such traditions. To quote one of my respondent’s view,
she states, ‘Mizo customs and traditions are established by our forefathers in accordance
with Mizo society structure- which is best suited for the functioning of the Mizo society, I
don’t think it is a good idea to forsake what our forefathers have built’.

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 At present, especially in Mizoram, women’s issues are hardly recognized as
social issues. Studies have also proved that women play an important part in transmitting
socio-cultural traditions, and women are the site for continuing tradition. Aparna
Rayaprol, in her study among the South Indian immigrants in Pittsburgh, USA shows
how women play a crucial role in keeping the customs and traditional practices. She
states, ‘South Indian Immigrant women who frequent the temple play a crucial role in
this process of reaffirming their cultural heritage and in shaping the identities of their
children’ (Rayaprol 1997:63). This is applicable even in the context of Mizoram, where
women are considered to be the “bearers” and “transmitters” of socio-cultural traditions,
which is also manifested in daily lives.

Cultural relativism
It is important to discuss cultural relativism and its implications on women, and
the discourse on international human rights. The protection of human rights of
individuals was considered as a sovereign prerogative of the state and therefore as a
domestic rather than an international concern. However, the atrocities of the Second
World War create debates among the scholars and politicians. In the discussion, it was
brought out that individual’s rights cannot be left alone at the mercy of domestic legal
system. This agreement was expressed in the creation of the United Nations and the
enactment of the complex international regime of universal human rights. When the
Human Rights Commissions was created, the issue of human rights was a central part of
its mandate and the Sub Commission on minorities was created with independent experts
as a means of ensuring its impartiality and objectivity (Zechenter 1997; Coomaraswamy
2005).

The essence of minority rights as recognized by the international community in

Article 27 of the International Covenant on Civil and Political Rights. It gives minorities
the right to enjoy their own culture, to profess and practice their own religion and to use
their language. The declaration also gives them the right to enjoy their identity, their own
culture, religion and language. The state has an affirmative obligation to grant minorities
equality and to create conditions for them to develop their culture, language and religion.

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Though the formation of CEDAW (Convention on the Elimination of Discrimination
against Women) adopted in 1979 by the United National General Assemble describe as
an international bill of rights for women. Women’s rights provisions had to be read
together with the rights of indigenous or cultural rights (Zechenter 1997).

This is more complex for women from minority groups. It is therefore important
to examine the applicability of cultural relativism in the context of international human
rights regime. Cultural relativism asserts that concepts are socially constructed and vary
across cultures. There is no absolute truth, be it ethical, moral or cultural and that there is
no meaningful way to judge different cultures because all judgment is ethnocentric
(Gellner 1985). Cultural relativism implies that one culture is not superior to another. It is
the philosophical notion that all cultural beliefs are equally valid and that truth itself is
relative, depending on the cultural environment. Those who support cultural relativism
believe that all religious, ethical, aesthetic, and political beliefs are completely relative to
the individual within a cultural identity.

Elizabeth M. Zechenter states that, in practice, it is rather meaningless to speak of

cultural relativism especially in contemporary society. She argues:

Since there are several different variants of the theory, ranging from descriptive
relativism (also known as weak relativism; amounting to a commonsense observation
that cultures vary), through normative relativism (or strong relativism; positing that
since all standards are cultural bound, there can be no transcultural moral or ethical
standards), up to the most extreme form of relativism, known as epistemological
relativism (or extreme relativism), exemplified by Geertz and his followers –
claiming that humans are shaped exclusively by their culture therefore there exists no
unifying cross-cultural human characteristic (1997:323).

The most radical version of cultural relativism, known as epistemological relativism

emerged in the 1970’s. According to this view (Geertz 1973; 1984),

All knowledge and morality are exclusively culture-bound, and rational thinking and
the scientific method are no more than a culturally-bound form of western
ethnoscience. In that view, science is not a logically coherent system of verification
and falsification, but rather a culturally biased way of thinking that is no different
from magic or witchcraft (see Zechenter 1997:325).

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According to this view, all cultural views are equally valid such as customs and ethics are
relative to the individual within his/her own social context. Relativists declared “there is
no absolute truth” meaning no universal standard of morality exists, so no one has the
right to judge another society’s customs. Zechenter argues, ‘By adopting cultural
relativism, proclaiming unqualified tolerance of all cultures, and by taking a group-
cantered perspective, anthropology has left little room for rational discussion about the
rights of individuals, particularly in the non-Western societies’ (326). This is extendable
especially in the context of women.

In some African societies, the practice of “Female Genital Mutilation” (FGM)

also known as ‘Female Genital Cutting’ or ‘Female Circumcision’ gained worldwide
attention especially of the western feminists. The World Health Organization defines ‘All
procedures that involve partial or total removal of the external female genitalia, or other
injury to the female genital organs for non-medical reasons’. FGM is carried out on girls
from a few days old to puberty. Studies have pointed out that, it is usually performed,
without anesthesia by a traditional circumciser using a knife, razor or scissors. This issue
gained international attention. Within the academic discussion, FGM is a site which
became a debate on “colonialism and imposed western values”. Some even argued that
FGM is “being human the African way”. African anthropologists reacted to the way
struggle against FGM is being fought by western feminist with so much emphasis on
morality and self-righteousness. The ban of the practice under Federal Law and giving
out loans to African states conditional in order to fight FGM by the United States is not
well received. They do not like the fact that FGM has become “the vehicle for ‘the
arrogant gaze’ through which the west looks at and passes judgment on them without
contextualizing it (Coomaraswamy 2005:30).

Mohanty critiques representations of “third world” women in writings by “first

world” feminists on subjects such as female genital mutilation and women in
development. She critiques how most of the texts define women as “object” of what is
done to them rather than acting with any agency, and as victims of either “male

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violence”. Mohanty states, the western feminist writings “ignored” lived experiences, and
making certain generalization by assuming about differences between first world and
third world. Mohanty proposed a theoretical model involving “intersectionality”, which
will look at women and groups of women without falling into false generalizations, and
acknowledges the contradictions as well as the commonalities in women's experiences
(Mohanty 1991:55-65). Chandra Mohanty’s (2003) crtitique of ‘euro-centrism’ within
Western developmental discourses of modernity through the lens of racial, sexual, and
class-based assumption, Mohanty argued ‘gender essentialism over generalized claims
about women, assumes that women have a coherent group identity within different
cultures prior to their entry into social relation’ (Agnes 2011:xxviii).

Another example is sati in India, a practice which is supposedly considered a

“heroic death” and sacrifice which is considered “glorifying” women of her selfless act, a
cultural and religious embodiment. There are two views on this, some think that women
who really want to commit sati should be allowed to do, during colonial period there
were even the distinction of “good sati” and “bad sati”, “good sati” being women who
sacrificed herself willingly and “bad sati” means women who were forced to perform sati
(Nair, 1996). In recent times, an 18-year old Rajput woman named Roop Kanwar
committed Sati on 4th September 1987 at Deaorala village of Sikar Distrcit in Rajasthan.
At the time of her death, she had been married for eight months to Maal Singh
Shekhawat, who had died a day earlier at age 24. This case gained national headlines, and
it was all over the newspapers. Several thousand people attended the sati event. After her
death, Roop Kanwar was hailed as a sati mata or “pure mother”. The event produced
public debates on “modern Indian ideology” versus “traditional Indian thinking”. After
this incident, the state also took steps in order to prevent such actions, The Commission
of Sati (Prevention) Act was passed.

Another cultural practice is the “honour killing” practiced in some parts of India
and Arab countries, Turkey, northern Pakistan and countries with a Mediterranean
heritage etc. All these are conducted in the name of cultural practices, and it usually

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falsify in the name of tradition, family values and respect and not losing face in front of
other community members. Radhika Coomaraswamy states,

Though the mythology of sati depicts a poignant story, the actual fact is that is it
practiced in the area where a female life is greatly undervalued and where violence
against women and the girl child is widespread. The practice is a reflection of this
misogyny and not an isolated belief (2005:34).

Critique of Cultural Relativism

Many people reject cultural relativism by observing that societies do indeed
change their customs or habits in conjunction with the growth of the social, economic,
technological and scientific capabilities. They believe the common denominator among
different cultures, suggesting the common humanity of people as the basis for cross-
cultural morality and ethic that are not completely culturally relative (Zechenter
1997:326). For instance, Gellner (1985) questioned the cultural relativism assertion about
the ‘inherent incomparability’ of different cultures. Gellner argues, though there have
been many social scientists who have conducted research in seemingly ‘alien culture’, the
fact is that, no one has ever encountered a culture that was so wholly different and ‘un-
interpretable’. Likewise, no language was ever found not being capable to understand.
The fact that people have been able to migrate from one culture to another successfully
also indicates that they are able to ‘adopt’ or ‘modify’ other cultures. Modern studies
have in fact shown that there is such a thing as universal human nature. ‘There is an
underlying human unity which allows us to devise minimum universal standards
applicable to all human beings regardless of their culture’ (see Zechenter 1997:327).

Cultural relativism has many flaws, in many ways it overemphasizes the rights of
the groups and marginalizes the rights of individuals and non-dominant groups. For
instance, the inhuman act against women in Africa, India or in some other parts of the
world, cultural relativism usually provides the justification of those practices. Sati is one
such example. Cultural relativism is extended to all societies, as discussed, even in the
context of Mizo society, the customary law discriminates women, and the members of the
customary law board committee ignore women’s movement on the basis of Mizo cultural

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traditional identity. However, all the male members in the committee are of the opinion
that ‘Mizo customary law is discriminatory, but since this is our custom we cannot
change’ thereby justifying the unjust done to women. This kind of argument is similar to
what Zechenter has discussed, that is by emphasizing solidity and cultural stability of
customs and traditions, relativism overlooked the importance of social change. In fact,
they ignore the unavoidability of change in every society. They also ignore the fact that
some traditions persist while others are selectively discontinued. The fact is that, we
should recognize culture as an ongoing historic and institutional process where the
existence of a given custom does not mean that the custom is either adaptive, optimal, or
consented to by a majority of its adherents (1997: 332).

Zechenter suggests, there is the existence of a genuine difference among cultures,

and it may not be that easy to reconcile. But, we must fight the unjust deed done in the
name of tradition and custom. She thinks that human rights is worthy of protection
against the cultural relative assault. Individuals need to be protected against arbitrary and
brutal customs and practice, she states, ‘As such, human rights universalism is worthy of
protection against the cultural relativistic assault. Despite all its flaws, human rights
universalism still offers the best hope of dignified to the world’s population’ (342).

Are Women’s Rights Universal?

The reason cultural relativism often finds expression in the denial of the rights of
women lies at the intersection of issues relating to women, culture, and identity. There is
always the dilemma of “sameness” and “difference” emphasised by feminist scholars.
For some, women’s oppression is a universal phenomenon. Catharine MacKinnon
interprets patriarchy as being the most basic of all kinds of women’s oppression. She
critiques the patriarchal nature of the state and capitalism, and the ways in which
women’s sexuality is controlled. According to her, male dominance is a universal
phenomenon, she pointed out the condition of women and a shred sense of expression
and exploitation. Women everywhere suffered under the dominance of men (1982; 1989).
She would never countenance the belief that cultures or societies cannot be judged. She
would in fact argue that every culture and every society should be judged from the

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vantage point of sexual equality and oppression. On the other hand, scholars like Carol
Gilligan and Martha Minow are more concerned with the world of difference. Seeing
women's socialization as different, they see strengths and nuances in women's difference
from men. Their aim is to be less judgmental and more inclusive of worldviews and
traditions in which many women are differently empowered (Coomaraswamy 2002: 2-5).

As seen in Chapter-I, Crenshaw’s point about "intersectionality" where

oppression based on gender, class and race produces a collision that destroys the lives of
many women. Many women's activists have argued that the right of indigenous women is
an internal quest and one not subject to external standards.

The legitimacy of pluralistic and non-state customary laws has been subjected to
criticism within the International human rights discourse, under the coinage, ‘women’s
rights are human rights’ as the underlying theme. Feminist lawyers like Flavia Agnes are
against the demand of universal application of human rights, and are in favor of ‘a more
nuanced and culture specific theory of women’s rights’. Here I find Chandra Mohanty’s
(1991) critique of ‘representation’ useful, and I agree with Flavia Agnes’s comment, she
states, ‘Rather than blindly advocating a ‘universally’ accepted position framed by a first
world feminist discourse, women’s rights groups need to advance a position which is
rooted within third world’ (Agnes 2011:xxvi).

Tribal Women
The international human rights discourse is more complex in the context of tribal
society. It was only in 2007, for the first time interaction on human rights issues was
conducted by Mizoram University (Ete 2008). In Mizoram, human rights workers mostly
deal with issues such as sexual violence, child rights, corporal punishment and women
who represent ‘obvious vulnerability’. Violation of women’s rights in terms of property
rights or marriage within customary law is considered a “private” matter. Jarjum Ete in
her study among the northeast women points out,

Tribal women look at themselves within the customary set-ups- the traditional
councils and their own practices or laws….the state of Mizoram had codified the

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 customary laws. They have again reviewed but, unfortunately, the women didn’t have
much say in it. Not even in the review process, despite the fact that they have a
women’s commission and the MHIP is supposed to be a big women’s movement in
the state of Mizoram. Despite the fact that Mizoram is the state with the second
highest literacy rate in the country, women’s voices from Mizoram are yet to be heard
outside the state (2008:74).

The above statements well reflect the position of Mizo women. However, the MHIP
which is supposed to be a women’s movement in the state does not necessarily campaign
for women’s equality with men. A prominent MHIP (ex president) in her reaction to my
question on Uniform Civil Code and reform of Mizo customary laws said to me “My
identity as Mizo women is most important, if we demand to join the Uniform Civil Code
movement, it will endanger our Mizo Identiy. Also, I strongly feel that we cannot change
customary law”. Another example is Chairman of the Human Rights Commission in
Mizoram who states “I support women empowerment but I am not a feminist, and I don’t
challenge male’s authority”.

In this context, Flavia Agnes’s argument on UCC is very useful. She states, based
on the India past experiences, ‘…reform within personal laws is better suited to protect
women from these communities against their own internal patriarchies, rather than
endorsing a majoritarian Hindu agenda of enforcing a uniform civil code as a feminist
project’ (Agnes 2011:xxvii). As Haksar (2008) also rightly pointed out, the application of
UCC is not welcome at all, to quote one of MHIP leaders,

I am aware that women from mainstream society have proposed the adoption of
UCC. I am against the idea and i don’t think it is good for Mizo society. In India,
there are different communities and tribal groups, some are more advanced than
others, and some are well educated and also economically well established. We Mizo
are backward and also minority within India, therefore, we need to protect our
customs and traditions.

Critique of Perceptions on North East Women

In the northeast, women are actually suffering from the false perception which
says they are more “free” and “liberated” as compared with women from Hindu or
Muslim community. Haksar also points out,

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 The positions of women from tribal societies are far better than the position of
women in caste society. There is equal availability of divorce to both men and
women, there is a right to remarry, absence of religious taboos concerning
menstruation and absence of physical seclusion (Haksar 2008: 283).

The general perception is that women from north east have better status than women from
caste society. Therefore, why should they need to be empowered? In Mizo society,
women’s status and position are not measured in relation between men and women, but
they will be compared with Hindu/Muslim women, pointing out the practices of dowry
and purdah system, and consider that the absences of such practices are an indicator of
“better status” (Chatterji 1975). This is clearly not very accurate.

For instance, the tribal customary practice which allows widow to remarry may
also need to be looked at from different angles. E.J Thomas in his study among the Mizos
makes an interesting point, that is, in traditional Mizo society women were free in the
matters of marriage, sex and divorce. Very few restrictions were imposed on them.
However, he states,

This was more advantageous to men for their free-lance sexual activities rather than
respecting the freedom of women and there by describing it as higher status rendered
to women. In the matter of sex offence men prevailed over women. In the field of
economy activity, with minor exceptions, women could not possess property. The
freedom in the matter of sex, marriage, and divorce given to women was in order to
gain advantage for men than rendering higher social status (1993:16).

In the context of Mizo society, though both men and women are permitted to divorce,
because of the social circumstances, men divorcing women is more common. And also,
though both can re-marry there is a condition given to women. Unless she fulfils
customary prescribed ceremony she cannot re-marry. The ceremony can be done within
three months. When divorce takes place women are sometimes left homeless with no
income. Therefore, there is problem in making generalizations on tribal women. As Xaxa
(2005:356) has pointed out, ‘Rather than talking of high or low social status, it is more
pertinent to talk of inequality of gender. In the latter case, one can examine the relative
position of women and men in relation to their access to equal opportunity, both formal
and substantive’. A detailed analysis of divorce and maintenance is in Chapter- V.

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Towards Reformation
E.J Thomas conducted a survey among the Mizo with regard to updating Mizo
Dan (Mizo customary law). The research was based on four criteria, such as:- 1)
marriage, family and divorce customs 2) status of women 3) rights of children 4) property
and succession rights. The research was conducted among men and women, both were
asked to express their opinion on the relevance of the Mizo customary law and whether
they are in favour of a change. The following table shows interesting results (1993:44-
45),

The Relevance of Mizo Dan in Contemporary Society

Sex Opinion Marriage, Status of Rights of Property and

family and women children succession
divorce rights
Relevant 42.02 30.30 37.50 12.50
Men Irrelevant 57.97 69.69 62.50 87.50

Relevant 61.90 36.36 28.57 07.93

Women Irrelevant 38.09 63.63 71.42 92.06
Relevant 46.66 31.80 35.48 10.48
Total Irrelevant 53.33 64.50 68.18 89.51

E.J Thomas in his analysis points out, majority were for new legislations ranging
from 53.33 percent in regard to marriage, family and divorce; 64 percent for the status of
women, 68.18 percent for the rights of children and 89.51 percent with regards to
property and succession rights. He mentioned that the data represents a clear indication of
Mizo views on the relevance of Mizo customary laws in present society. People who feel
that Mizo Dan is relevant today do not “seriously object to change but their anxiety is
about the outcome of the change”. This is more highlighted in the case of males where
the percentage for irrelevance of Mizo Dan is 57.97 percent for marriage, family and
divorce; 69.69 percent with regards to women, 62.5 percent rights of children and 87.5

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percent in terms of property and succession rights. As shown in the table, for women,
except in the case of marriage, family and divorce (38.09%), in all other areas the
percentage is more than men. Thomas points out how Mizo women quoted the Bible to
justify their low status and are happy to continue in the same level (44). Thomas’s
concluding remark is,

…It is clear that Mizo society is in flux with regards to customs and norms governing
their socio-economic, political and religious life. In the name of keeping identity of
culture, they look askance at modern law and social legislation. Therefore they are
caught in between tradition and modernity trying to compromise with both making a
patch work guilt. A bold step is necessary to make over-all change. At present the
attitude is for a change of convenience instead of change for progress. In many areas
change is not possible since some of the present conditions are advantageous to the
male dominant society (1993: 45).

Eighteen years have passed since Thomas pointed out in his study indicating that
the time is ready for initiating legislations in Mizoram. No notable change has happened
so far, and the one change that members of Mizo Customary Law Committee observed
was towards widow’s property rights. According to the Mizo Customary Law 2006, a
widow can inherit property and also have the full ownership and authority as long as she
remains celibate to her dead husband. Contrary to Thomas’s findings, during my
fieldwork, majority of the people I interviewed are of the opinion that ‘customary law
should not be changed’, as Thomas has also pointed out, they intend to keep customary
law as it is in the name of keeping the Mizo identity and tradition alive.

As Thomas has rightly pointed out, a bold step is indeed necessary to make
changes. Instead of a “change of convenience”, a “change for progress” is required. It is
difficult to talk of what could be the best strategy. Looking at the historical context and
also the ‘peculiarity’ of the tribal community, perhaps, reform within their “indigenous
laws” is what will actually benefit women. Because, laws such as ‘international law” or
“central laws” are viewed as “alien” and a “threat” to their cultures. Therefore, it might
be helpful to point out the discriminatory nature of customary law and address issues
which need to be addressed. Instead of using culture as the so-called explanation and
justification for all social behaviours, we should be asking whose interests are being

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served by the traditions and customs, and who benefits from those traditions? Why some
‘reform’ took place and some remain unchanged and some customs are even resurrected?
Who are the agents of these traditions and customs? Which and whose rights are more
fundamental than the others? These questions and more discussions might produce new
perceptions and create new thinking among the community members on issues such as
marriage, family, divorce and inheritance.

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